Space law: Is asteroid mining legal?

Can a private company claim ownership of an asteroid based on sending a probe out to
it? Can it at least get exclusive mining rights? Would it own the
gold, platinum or other materials mined from the asteroid?

Last week, a private company, Planetary
Resources announced an ambitious plan to prospect for and eventually mine near-Earth asteroids.
Backed in part by Google execs Larry Page and Eric Schmidt, this
venture has stirred the pot once again on the question of outer
space property rights.

Outer space, including the moon and other celestial bodies, is
not subject to national appropriation by claim of sovereignty, by
means of use or occupation, or by any other means.

Others have
argued that because Article II only applies to nations,
individuals are free to claim chunks of the solar system. But as we've noted before, the treaty also requires nations to ensure
their citizens comply with the other provisions of the Outer Space
Treaty -- including a prohibition against sovereign claims of
property rights. So neither nations nor individuals can appropriate
territory in space. But what about asteroid mining?

While Article II clearly bans "appropriation", other provisions
actually support property rights. The treaty makes clear that both
the exploration and use of outer space shall be free of restraint
and discrimination, and that there will be free access to all parts
of space. It also states that the use of equipment and facilities
necessary for peaceful activities is fine. And anything launched
into (or built in) space remains the private property of its
owner.

To make sense of the Treaty, we must turn to customary
international law -- how nations have interpreted what these treaty
provisions mean in their dealings, both internally, and with other
nations. These other sources of international law are critical
because the Outer Space Treaty itself is at best confusing and, at
worst, internally inconsistent on space property rights.

Blanket claims to celestial bodies have been attempted for
millennia, yet none has been recognised by customary law. The only
court case we have in this respect arose when Greg Nemitz, a space activist, filed a claim
for the asteroid Eros with an online database known as the
Archimedes Institute, and then sent Nasa a bill for parking fees
when Nasa landed the NEAR-Shoemaker probe on Eros in 2001. The U.S.
9th Circuit Court of Appeals dismissed the suit because Nemitz was
unable to prove actual ownership rights for Eros.

While Nemitz failed, customary international law has essentially
recognised property rights based on possession -- which, as the old
saying goes, is nine-tenths of the law. Satellite orbits, for
instance, are allocated by the International Telecommunications
Union. Strictly speaking, they are not "owned" by the assignee, but
can be renewed on a regular basis, and can be leased to other
parties. This and Outer Space Treaty's recognition of property
rights for satellites are the basis for the more than
$300-billion-per-year (£185 billion) private satellite
industry.

Similarly, asteroid mining will depend on customary
international law established by the 1960s moon race between the
U.S. and USSR. The six Apollo landings brought back 382 grams of
lunar material. Nasa has strictly controlled use of the material,
and less than ten percent has ever been experimented on.

NASA itself claims (.pdf) that the lunar
samples are "a limited national resource, a future heritage, and
[requires] that samples be released only for approved applications
in research, education, and public display." The United States
government has vigorously prosecuted anyone thought to have
improperly obtained any such samples. Yet Nasa exchanged some of
these samples with the Soviet Union, which drew from the
approximately 300 grams of lunar material brought back by three
Soviet Luna robotic sample return missions.

Under any definition of ownership, the United States clearly
owns the Apollo lunar samples. Any entity that can claim something
as an exclusive resource, control its transport and distribution,
and can exchange it for something else of value (in this case,
other lunar samples), clearly owns that object. Russian lunar
samples have been re-sold by private individuals, establishing that
portions of a celestial body can be subject to ownership if they
are removed from that celestial body -- whether by governments or
private parties -- even if the celestial bodies themselves are not
subject to appropriation.

This is the single most important legal precedent for property
rights in space, and should provide great comfort to those who wish
to exploit the resources of outer space. It is also consistent with
many commentators, who allege that the Outer Space Treaty's
prohibition on "appropriation" relates only to entire celestial
bodies as they exist "in nature," and that both individuals and
nations can claim ownership of resources extracted from celestial
bodies. The only real question, then, is the extent of this
ownership: Can an entire asteroid be claimed if it is being
mined?

Under the Outer Space Treaty, if a company is mining an
asteroid, no other entity could come along and start mining on the
other side if doing so could interfere with the first set of
miners. If the asteroid were large enough to accommodate two
independent mining operations, both could likely proceed, each
gaining ownership of whatever material they extract. Thus,
customary international law already gives would-be asteroid miners
a sound basis for their business model.

But what if a mining company captured an asteroid, changing its
orbit to bring it closer to Earth and thus make return of extracted
materials easier? Would the entire asteroid belong to the mining
company because the asteroid, as a whole, was "extracted" from its
"natural" orbit -- becoming more like a single rock or an
artificial satellite than a moon or a planet?

This question is too far in the future to answer. But the day
that question arrives, we can all pop the champagne corks to
celebrate: Mankind will have become a truly spacefaring species. We
will have taken the first steps toward bringing the nearly
limitless resources of space into the economic sphere of
humanity.